This week attorneys representing St. Olaf College and MPR in the WCAL matter attempted to avoid having the Friday, October 24th Rice County District Court hearing on the SaveWCAL Petition To Redress Breach of Trust. They were not only thwarted in their efforts — their actions actually opened the door for SaveWCAL to place certain information squarely in front of Judge Bernard Borene before the hearing.
The first response that SaveWCAL received to its Petition To Redress Breach of Trust occurred on Friday, October 17, 2008, when the Gray Plant Mooty attorneys representing St. Olaf College submitted a Notice Of Motion And Motion To Dismiss Or, In The Alternative, For Summary Judgment [PDF, 4 pages], to the Rice County District Court. St. Olaf scheduled a hearing on this Motion for Thursday, December 18, 2008. Copies of the documents were mailed to SaveWCAL attorney Michael McNabb and received on Monday, October 20.
That same day, the Faegre & Benson attorneys representing Minnesota Public Radio (MPR) also submitted an almost identically worded Notice Of Motion And Motion To Dismiss Or, In The Alternative, For Summary Judgment as well as a Notice Of Appearance Of Counsel [PDF, 4 pages] to the Rice County District Court and MPR attorney Salo Ales also sent a separate letter to Rice County District Court Judge Bernard Borene [PDF, 2 pages], requesting that the SaveWCAL "status hearing" scheduled for Friday, October 24 be continued (delayed) to December 18 (sic).
The MPR attorneys refer in the salutation to "Judge Bernard" (instead of "Judge Borene") and they ask for a continuance until the proposed hearing date "on Friday, December 19, 2008". The proposed hearing is actually scheduled for Thursday, December 18th.
A copy of these two letters from MPR were mailed to SaveWCAL attorney Michael McNabb and arrived at his office on Wednesday, October 21. On the same day (October 21) at 12:04 p.m., the St. Olaf College attorney Michael Cunningham, faxed a letter to SaveWCAL attorney Michael McNabb [PDF, 1 page], suggesting that the "initial appearance" set for this Friday be cancelled.
It is very possible that MPR and St. Olaf coordinated this submission of letters to the Court and timed the mailing of the copies to SaveWCAL to arrive at such a late hour as to prevent SaveWCAL from taking action. It's a tactic St. Olaf attorneys have used before. We expect to see more of this as the matter continues.
Cooperation between MPR and St. Olaf does not surprise us since Section 5.1 of the Purchase Agreement for WCAL/KMSE requires that MPR and St. Olaf College work together in utmost secrecy regarding the WCAL matter:
ARTICLE 5: JOINT COVENANTS
5.1 Confidentiality. Subject to the requirements of applicable law, all non-public information regarding the parties and their business and properties that is disclosed in connection with the negotiation, preparation or performance of this Agreement shall be confidential and shall not be disclosed to any other person or entity, except on a confidential basis to the parties' attorneys, accountants, investment bankers, investors and lenders, and their respective attorneys for the purposes of consumating the transaction contemplated by this Agreement.
The Minnesota Attorney General has not, to our knowledge, made any filings or giving any sort of response regarding SaveWCAL's Petition. The lack of action on the part of the chief legal officer of the state remains consistent.
So . . . MPR & St. Olaf expected that there would simply be a continuance of the proceedings delaying the October 24th hearing until December 18, 2008.
But it didn't work out the way MPR and St. Olaf College hoped.
Instead, the letters from St. Olaf College and MPR allowed SaveWCAL to squarely place before the Rice County District Court the fact that St. Olaf College has been obstructing (since April 5, 2007) and denying (since December 5, 2007) access to the College's public archives to SaveWCAL supporters in a deliberate attempt to stop relevant facts and evidence from reaching the Court regarding the WCAL trust.
St. Olaf College began these actions when SaveWCAL began producing evidence gathered from the St. Olaf College archives that contradicted the information that St. Olaf was placing before the court in the matter of the St. Olaf Original Petition and Amended Petition.
On Thursday morning, October 23, 2008 — just one day prior to the scheduled hearing on the SaveWCAL Petition To Redress Breach Of Trust — SaveWCAL hand-delivered a letter and exhibits in response to the MPR request and St. Olaf letter [PDF, 17 pages] to the Rice County District Court and Judge Borene.
In the letter, SaveWCAL says that we have no objection to a continuance of the proceedings provided that SaveWCAL is provided with full, unrestricted access to the St. Olaf College and WCAL archives. SaveWCAL attorney Michael McNabb wrote:
The hearing set for this Friday is a hearing on the merits of the Petition pursuant to Minn. Stat. § 501B.21. It appears that both St. Olaf and MPR are seeking additional time to prepare for the hearing. A continuance would allow St. Olaf and MPR additional time to investigate the facts and to conduct legal research. The product of a continuance might be a better presentation by the parties that would provide the Court with the basis to render a fully informed and equitable decision. SaveWCAL would not object to a continuance to December 18, 2008 provided that St. Olaf removes the restrictions on access to its archives that it imposed in December 2007. This action would give SaveWCAL the same opportunity (and the same amount of time) to develop the facts that St. Olaf and MPR are requesting.
The St. Olaf archives contain documents relating to WCAL. The public policy of the college is that the "materials are available for research by members of the St. Olaf community, visiting scholars, and other Library patrons." See the page from the St. Olaf web site included with the enclosed materials.
SaveWCAL had access to the St. Olaf archives during the previous proceeding (No. 66-CV-06-2518) from the time St. Olaf filed its Petition in December 2006 until St. Olaf cut off access in December 2007. At that time SaveWCAL raised the issue with Judge Meyer, who was then serving as the Special Master. See the enclosed letter memorandum of December 8, 2007 entitled Obstruction of Research [SaveWCAL Letter Memorandum #4: "Obstruction Of Research" [PDF, 3 pages] and SaveWCAL Letter Memorandum #4 Exhibits [PDF, 6 pages]]. Unfortunately, we did not receive a response from Judge Meyer until he sent the enclosed email on February 12, 2008 in which he declared that "I am not in a position to order St. Olaf to open or close its archives." He was in error in that regard because Rule 53.03 of the Minnesota Rules of Civil Procedure expressly grants to the Special Master the "authority to regulate all proceedings." By the time we received that response it was too late to request a reconsideration or to ask Judge Wolf to review the matter. Judge Meyer was in the final stages of preparing the Report that he issued on March 7, 2008.
A response by St. Olaf that SaveWCAL could now use formal discovery to obtain documents relating to WCAL would simply be a continuation of its attempt to obstruct research and to prevent the Court from receiving all the relevant facts. Formal discovery would not be adequate under these circumstances. First, it is not possible for SaveWCAL to submit a specific request for documents because quite often we do not know whether any document may exist to verify some fact. Second, the use of formal discovery would not allow SaveWCAL the same amount of additional time to investigate the facts that St. Olaf would have because it could delay a response until the last minute allowed under the Rules of Civil Procedure.
Nor is formal discovery necessary. We have a depository of records that is open to all patrons of the Library under St. Olaf's own policies. It is patently unfair to allow one party the advantage of selecting whatever records it chooses to present to the Court while denying SaveWCAL the same opportunity. Did St. Olaf act to place all documents relating to WCAL off limits to SaveWCAL in the desperate hope that the Court will never see certain documents? If the archives contain additional, relevant documents, then all parties should have the same access and the same opportunity to present those documents to the Court.
This issue of access to the archives is even more critical here because the Attorney General has failed to exercise the powers of investigation granted to her under Minn. Stat. § 501B.40. As Judge Wolf observed in the previous proceeding:
The Minnesota Attorney General is the watchdog of all trusts throughout the state of Minnesota. Deplorably, when St. Olaf made the decision to sell WCAL, no one form the Attorney General's Office intervened to safeguard the trust. The Attorney General was notified by SaveWCAL of the pending sale yet they failed to do anything. The undersigned is absolutely mystified as to why the State Attorney General did not become involved in a sale of trust assets valued at $12 million when it is its statutory obligation to do so. Let's hope this type of activity never happens again.
* * * *
The only watchdog looking out for the interests of the trust in this case was the Respondent, the non-profit organization SaveWCAL. SaveWCAL raised the alarm when they first learned of the sale of WCAL by St. Olaf, but neither St. Olaf nor the Minnesota Attorney General's Office paid any heed to SaveWCAL's warning.
Order entered on June 10, 2008 at 4 (emphasis added). Please see the enclosed letter memorandum and exhibits (St. Olaf web page, Sylte email of December 7, 2007, and Voxland letter of April 9, 2007) for further discussion of this serious issue. If St. Olaf agrees to grant SaveWCAL unrestricted access to the archives, then we do not object to a continuance of the hearing. If not, then we request that the hearing go forward on October 24 to consider either this issue or the merits of the Petition (or both) as the Court deems appropriate.
At the time of this posting (one hour before the hearing), there has been no word of a continuance from the Rice County District Court and we expect the hearing to commence as scheduled at 3:00 p.m.
St. Olaf College and Minnesota Public Radio now have three attorneys each that have been assigned to oppose SaveWCAL in court. St. Olaf is paying for three Partner-level attorneys. MPR is paying for two Partners and and an Associate. See the SaveWCAL postings introducing the St. Olaf attorneys and the MPR attorneys.
The Minnesota Attorney General's office is usually represented by at least two attorneys, often including Assistant Attorney General Ann Bloodhart of the Charities Division.
SaveWCAL continues have excellent representation in our single attorney, Michael W. McNabb, and the SaveWCAL volunteers who assist him.
Yet it does not matter how many attorneys St. Olaf, Minnesota Public Radio and the Minnesota Attorney General throw into this contest; they cannot change either the facts or the law.
SaveWCAL will be ready to respond.
We are grateful for the generous financial support that continues to flow in from SaveWCAL supporters and the amazing work of our SaveWCAL volunteers. You are helping us to make a difference for the rights of donors! Thank you.
{ 7 comments… read them below or add one }
Boy, that's a lot of legal firepower on the side that conspired to violate the WCAL trust. Those two institutions must see the obvious: the law is really, really not on their side. Hey, has anyone ever wondered if Kling–who, though unethical isn't stupid–somehow _knew_ that Hatch wasn't going to enforce the law? Dying to hear what ultimately happened this afternoon!
Thanks. My thoughts were with the SaveWCAL team all week. Has any one proposed ways in which we can discover why the AG office has been ducking this situation?
A long, long-term friend of WCAL I am. A patient, heart-felt friend of justice, too – of course.
So, I went to the Court House to witness and hear the facts in the formal Petition To Redress Breach of Trust made by SaveWCAL.
What I saw there reminded me of a "B-rated movie" scene; the "good guy", Attorney McNabb stood tall – articulate and well-prepared with the facts and truths of the matter – and impressively well-read in the Law; he faced a judge who appeared to have just come up from a nap and was surprised to find "real issues" before him and a bevy of "smooth", high-powered attorneys, three representing St. Olaf, and three representing MPR, and one from the MN Attorney General's office arrayed solemnly in front of him. Also present was a dapper, well-dressed, finely-combed man who made no comments but was thought to be an Executive among St. Olaf staff.
All friends of SaveWCAL will be very happy to learn that Attorney McNabb made an effective, terse and impressive presentation and rejoinders as needed in this meeting.
To a lay person like myself, and the dozen or more other friends of SaveWCAL present – the meeting was a dramatic plea for justice. Very well done by Attorney McNabb.
The opposition is certainly not to be discounted; but they were – to a man – not as personally engaged in this matter and exhibited little passion and spoke with what seemed like a somewhat dismissive attitude toward the judge and about this matter overall. Yet, with "six lawyers cranking away, and $$$/hr.", for the opposition, it is quite evident that St. Olaf and MPR are digging into their deep pockets with an earnest resolve to defeat us with plenty of their resources.
I noted the judge took notice the matter before him was going to take him to a new level of effort; he has "homework to do" now, too.
This brings up the obvious for friends of SaveWCAL; we need to encourage all like-minded folks to pitch in some support – in donations now, to SaveWCAL, and to possibly being present at the next hearing.
Rest assured; we have very fine, high-quality representation in this effort – overall, but Attorney McNabb needs something more than "Thanks, you're great!" from us. "Dig deep; do it more than once; and come to the next meeting, please!"
This is our "finest hour, to do the right thing…". We are at the edge of a "great victory"; at least it does look like it since – we have a vigorous opposition, an aroused judge, and a "champion challenger" for justice needing your support.
Step up; the SaveWCAL group have "day jobs"; Law is McNabb' day and now "NIGHT" job too!
"…life is not measured by the number of breaths we take but by the number of moments that take our breath away." – Anonymous (As read from a coffee mug at Barnes & Noble, last evening while thinking about WCAL and the day's events.)
Well, it's very possible that soon, the months ahead may bring a "breathtaking moment" to folks joining the SaveWCAL efforts; you do want to be part of this – now, don't you?
As for me, I'm not going to set this opportunity aside for anything! Thanks, Michael McNabb – and all the rest of you at SaveWCAL working on this! Keep up the good work; your friends are very proud of you!
There are two thoughts that keep running through my mind as I read about WCAL, MPR, and Saint Olaf. The first is Tad Piper and how no one seemed concerned about conflict of interest on his part and the second is the attorneys generals office that seems so completely out of the process.
Good job; can't wait to hear all about what happened. They have no where to hide now. Since 2004, when the SaveWCAL attorney put the Attorney General on notice that WCAL was a charitable trust, this sale has been illegal. There was no acting in good faith, because they KNEW what they were dealing with, BEFORE they signed the papers. And SIGNED them anyways.
Maybe it's time to send a LOUD "Wake Up Call" to the MN Attorney General's office; it seems that their role in oversight of the WCAL Charitable Trust Case has been without effect, their staff's participation as passive spectators – apparently, for the most part. Would it be in SaveWCAL's interest to revitalize the petition effort which was taken and submitted to St. Olaf back in the earlier days, renewing and revitalizing those friends of WCAL in a Petition directly to the AG for the purpose of getting REAL action from the AG's office in enforcing the LAW? A few thousand very aroused citizens signing a Petition would be hard to "sleep through". On my desk is a somewhat old gift, paperweight from "days back" that reads: "Only that day dawns to which we are awake…" Henry Thoreau Looking at it once again – this morning – was in a similar, thoughtful way, "a wake up call": Let's "WAKE THE PEOPLE UP!"